Court File and Parties
Court File No.: 11631 Date: 2016/09/07 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – John Harold Porter, Applicant
Counsel: G. Fowler, for the Crown C. Conron, for the Applicant
Heard: June 29, 2016
Before: George J.
Background
1The applicant, John Porter, stands charged that he, between December 20, 2012 and March 17, 2013, accessed child pornography in the form of a digital file, contrary to section 163.1(4) of the Criminal Code of Canada.
2A judge-alone trial is scheduled to commence on December 19, 2016. Three days have been set aside. I am now addressing only the applicant’s motion, which was argued on June 29, 2016.
3The applicant asserts that his rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms (Charter) have been violated.
4Relative to s. 8, the applicant contends that, based on the information then known to the justice, the warrant should not have issued. He pleads that the grounds set out in the Information to Obtain (ITO) did not meet the threshold required to authorize a search.
5The s. 7 argument focusses on the passage of time from the commencement of the investigation until the obtaining, and execution of the search warrant. He claims this has hampered his ability to make full answer and defence.
6Should I find a breach, the applicant seeks the exclusion of all evidence seized by the London Police Service (LPS), and in the case of the alleged s. 7 violation, a stay of proceedings.
Facts
7On March 7, 2010, an internet hosting company based in the United Kingdom (UK) noticed heavy traffic to a website maintained by one of its customers. The traffic consisted of requests for specific files within a web space that contained indecent photographs of children. Later that month the company reported this to its local police force (Gloucestershire Constabulary), at the same time preserving the noted IP addresses.
8On January 31, 2011, UK authorities forwarded an investigation package to the National Child Exploitation Coordination Centre (NCECC), a Canadian point of contact for investigations involving child pornography and exploitation on the internet. On December 7, 2011, a representative of the RCMP, through the NCECC, reviewed the images accessed by IP address 64.231.12.211, confirming with Bell Canada that that address is linked to its customer John Porter, of 416 Riverside Drive, London, Ontario. The images were determined to fit within the definition of child pornography.
9This information was communicated to the LPS on December 23, 2011, where the investigation laid dormant for almost a year. The information that was passed along included the IP address, Bell customer name, the residential address linked to this particular IP number, and that it was used to access the images in March 2010.
10The applicant pleads that his s. 8 rights were breached in the manner in which the RCMP obtained Bell subscriber information, which was through a law enforcement request, and without prior judicial authorization. At the hearing, counsel indicated that this point has since been clarified by the Supreme Court, conceding that the state of the law at the time was unclear. This aspect of the applicant’s claim was not vigorously pursued. I would add that, even if this did constitute a breach, neither the exclusion of evidence or a stay of proceedings would be warranted upon a s. 24(2) analysis.
11On October 3, 2012, LPS Detective Constable Angela Johnson is assigned the file. She receives and reviews the occurrence package.
12It was not until January 25, 2013 that Officer Johnson, who is both the investigating officer and affiant of the ITO (affiant), did any follow-up. She learns that the address in question had accessed 1251 images on the UK website.
13On March 8 and 13, 2013, the affiant conducts what I will refer to as local checks. Also, already knowing that the IP address is linked to 416 Riverside Drive in London, she attends near that residence, observing a trailer in the driveway. She later learns that a John Porter of 416 Riverside Drive does have a trailer registered in his name.
14Specifically on March 8, she conducts a police records check on John Porter, with a date of birth of August 28, 1955, and an address of 416 Riverside Drive. This does not reveal much, other than a notation that on February 13, 2013 he was issued a provincial offences notice and that his address was then 416 Riverside Drive, London. A search specific to 416 Riverside Drive, showed that a Pamela Porter was residing at that address in 2002.
15Returning to the trailer. As of March 2013, John Porter’s address in the Ministry of Transportation (MTO) database is noted to be 416 Riverside Drive, London, which also shows he has a trailer with a licence plate number registered to that address. When the affiant observed the trailer in the driveway, she was not able to take note of the licence plate number, confirming only that a trailer was situate at 416 Riverside Drive.
16MTO records disclose that John Porter has provided the address of 416 Riverside Drive since 2008.
17The affiant conducted a Canada411.ca search, that database noting a J Porter with an address of 416 Riverside Drive in London.
18In the ITO she, under the heading ‘Grounds To Believe Search Will Afford Evidence Of The Offence’, writes the following:
I spoke with computer forensic analyst Detective Constable Eddy in relation to a forensic examination of computer system(s) I believe to be located at 416 Riverside Drive, London Ontario and was advised the examination could provide evidence in the following ways: Internet history from 2010 could be located in relation to the website “buildarecipe.co.uk”. Evidence of the illegal image files could be located by searching the file path for the images in the internet history. Any evidence of the images files containing child pornography that may have been saved, either in active or deleted space can be located with forensic analysis tools. Further evidence in relation to the identity of the user of the computer while the images were accessed could be located.
I believe based upon the above noted facts, that on March 5, 2010 between 9pm and 1130pm John Porter, Pamela Porter or some other unknown person at 416 Riverside Drive, London Ontario used a computer system to access the compromised website “buildarecipe.co.uk” to access images that meet the Canadian Criminal Code definition of child pornography. I believe that a forensic examination of the computer system(s) located within 416 Riverside Drive, London Ontario used by John Porter, Pamela Porter or some other unknown person will reveal evidence of accessing numerous images of child pornography.
……..I believe that the foregoing information is true and there are reasonable grounds to believe that the granting of this search warrant will afford evidence with respect to the offences listed in Appendix “B”.
19On March 18, 2013 the warrant was issued.
20On March 21, 2013 the applicant’s residence was searched.
21Upon analysis of the devices located therein, it was determined someone at 416 Riverside Drive had accessed child pornography between December 20, 2012 and March 17, 2013. No downloaded images were located. No evidence respecting access from 2010 was found.
22The applicant was subsequently charged with the accessing offence.
23The affiant was subjected to a vigorous cross-examination. Throughout, she maintained the position she had reasonable grounds to believe an offence occurred and that evidence would be found on a device within the applicant’s home. She disagreed with any suggestion she had only a suspicion. This, of course, is for me to determine, but this is relevant to the question of whether she had a subjective belief, which there must be before any assessment of objective reasonableness. That is, whether her belief that evidence would be found, was a reasonable one?
Section 8 – Search and Seizure
24I will first address the s. 8 argument.
25Section 487 of the Criminal Code provides that:
(1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament
……may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
d) to search the building, receptacle or place for any such thing and to seize it……
26Section 8 of the Charter provides that:
Everyone has the right to be secure against unreasonable search and seizure.
27The applicant describes the ITO as speculative. He characterizes it as a fishing expedition, arguing it contains no information about the likelihood of finding evidence of access “years later”. He finds fault in the justice issuing the warrant three years after any known accessing of child pornography, with no follow up or attempts to monitor the activity from 416 Riverside Drive. He argues that the information was stale-dated, and not proximate to the date of issue.
28The applicant referred extensively to the preliminary hearing evidence of forensic computer examiner Christopher Lipscombe. His evidence, while not directly relevant to the affiant’s subjective belief, as it then was, does potentially explain, according to the applicant, a deficiency in the ITO given the lack of a stated belief that accessed (as opposed to downloaded) files would be retrieved from a device three years later.
29For instance, Mr. Lipscombe testified that a computer maintains a temporary internet cache, and that it “deletes old stuff”. It basically cleans up files not being used. He testified that files in the temporary internet folder can stay anywhere from a few weeks to a few months. In his experience, on only a handful of occasions has he located files that were a “couple of years old”. He was specifically asked about the likelihood of, in 2013, locating files on a computer that were accessed in 2010. He said “if you’re to ask me to make a bet on it, I’d - or the - I guess, 50/50. I might - I might not I don’t know until I look”.
30Hunter v. Southam, [1984] 2 SCR 145 is the longstanding seminal authority. To be free from unreasonable searches is a constitutionally protected right, the question in each case being whether the balance is tipped in favour of government intrusion to the detriment of individual privacy. Where feasible, the rights of the individual are to be preferred to the state. The guiding principles set out in Hunter are well known.
31Was this search warrant properly issued? I have determined that, had the information provided to the LPS been promptly acted upon, there would have been sufficient grounds to issue the warrant. Which leaves this question - did the passage of time diminish the reasonableness of the affiant’s belief? And given this passage of time, which the affiant attributes to assigning other cases higher priority, should Canadian authorities (whether the NCECC, RCMP or LPS) have further developed the investigation, beyond the noting of a trailer in the driveway, searching the MTO database, conducting the Canada 411 search, and obtaining the Bell subscriber information? And, in the case of the affiant specifically, should she have further enhanced her understanding of temporary internet files, caching, and the storage of accessed files, apart from what she learns from Constable Eddy?
32In my view, the issue is not whether the requisite grounds at one time existed, because as I just pointed out, it did. Also, contrary to what the applicant would have me believe, I do not accept that the LPS used or considered the information from the UK authorities, standing alone, as “evidential for any subsequent prosecution”, which is cautioned against in the report received by the NCECC. It simply formed part of the grounds to obtain the warrant. In other words, at trial the Crown will not be permitted to make use of much of the information contained in the overseas report, beyond whatever role it played in informing the police investigation in its early stages. Those accessed images, and the substance of the UK report, would not be admissible at trial for the truth of its content.
33The applicant takes issue with the language in the ITO, arguing the affiant’s use of the term “could” runs afoul of the test which requires an ITO affiant to believe the proposed search “will” afford evidence of the offence. It is worth noting that in the ITO passages referenced earlier, the affiant does use the term “will”. However, she did, at times, and certainly during her testimony, use the term “could”. The argument appears to be that unless an affiant states with 100 percent certainty that evidence will in fact be found upon a search, a warrant should not issue. In this respect, there seems to be a fundamental misunderstanding of the threshold. The state of the law is not that the affiant must know with absolute certainty, that upon conducting the proposed search, evidence will be yielded. This isn’t feasible or achievable. The focus is always to be on the affiant’s belief, and whether it is a reasonably held one, and not whether what is deposed is infallible and destined, without any question, to produce evidence. The affiant must reasonably believe it will; but this not an exercise in crystal-balling.
34The, perhaps ill-advised use of the term “could”, in some cases will reveal a deficiency in the application, but on a review of the entire record and ITO in this instance, the affiant’s belief, and the basis for her belief, is clear.
35I reproduce these passages from the ITO, beginning at para. 40, to set out the basis for the affiant’s belief:
On March 5, 2010 between 9pm and 1130pm someone using IP address 64.231.12.211 visited the website “buidarecipe.co.uk” and accessed 1251 images. The images are described by Gloucestershire Constabulary as indecent images of children. Gloucestershire Constabulary reports that the images were not available to the regular user of “buildarecipe.co.uk”.
I viewed 10 of the 1251 images accessed by the person using IP address…..on March 5, 2010….and found that 8 of the images meet the Canadian Criminal Code definition of child pornography. I noted that the image titles were simple file names and they were not indicative of child pornography. Based on the large number of images viewed by the person using a computer at [the] IP address……..and the fact that each had to be opened independently I do not believe the images were accidentally accessed.
Constable McCoombs from the RCMP obtained the subscriber information for [that] IP address….used on March 6, 2010 at 2:07am UTC. [That] IP address……on that date and time was issued to subscriber, John Porter, 416 Riverside Drive, London, Ontario.
In my experience many individuals who access child pornography also collect child pornography and do not want to part with all or part of their child pornography collections as there is considerable risk and expense in obtaining them. I also know that individuals that view this type of material often continue to access child pornography on a consistent and regular basis and have evidence of this action left within the computer.
Although the investigation from Gloucestershire Constabulary could not identify whether the accessed images were downloaded to the suspects computer, I know from my experience that the images could have been downloaded and saved quickly and easily. I also know from my investigations that images and movies can be stored and saved on a variety of devices, these devices included Compact disks, DVD’s, USB drives, external computer hard drives, camera memory cards and other digital storage devices. Any images or movies can be easily transferred or copied from any of these devices or storage media to other digital devices including any computer device. It is reasonable to believe that the images accessed from “buildarecipe.co.uk” could have been saved to numerous computer devices.
I also know that computer operating systems can be stored on a variety of devices, including USB devices and can be used with the assistance of a computer system to access the internet. Operating systems on a USB drive can be used without committing a permanent installation on the local hard drive of the computer system and users can save personal files including images directly to the device. As such all Internet history would be located on the USB device with contains the operating system.
I know through my experience that images that have been deleted from computers and computer devices including external storage devices can typically still be retrieved using forensic tools applied by our forensic analysis unit.
On several occasions I have been involved in search warrants conducted on computer systems in excess of one or two years after a child pornography offence has been committed and located evidence of the offence. Further in all my investigations thus far in relation to child exploitation the accused involved has had numerous other files in relation to child pornography.
36ITO paras. 49 through 51 were reproduced earlier, which detail the affiant’s consultations with forensic analyst Detective Constable Eddy, and his advice that internet history from 2010 could be located in relation to a particular website, and that evidence of the images files that may have been saved, either in active or deleted space, can be located using forensic analysis tools. All of which leads her to the conclusion she has reasonable grounds to believe that the granting of a search warrant will afford evidence with respect to child pornography offences. Constable Eddy is clearly speaking in generic terms, describing generally what would need to be done to retrieve certain images. However, as I suggested earlier, the expectation can’t ever be that the affiant predict the future. The question is, whether the combination of Eddy’s advice, the facts as they were passed along by UK authorities, the additional information learned by Canadian officials, and the opinions and beliefs formed, not indiscriminately, but based on the affiant’s own training, background, and experience, meets the requisite threshold. Was it reasonable for her to depose that upon a search of 416 Riverside Drive, evidence of child pornography would be found?
37A search warrant authorization is presumptively valid. My role as a reviewing judge is not to determine whether I would have issued the warrant, rather whether there was sufficient credible and reliable evidence to permit the justice to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. In other words, could it have been issued, not would I have issued it? Was there any basis for the authorization? See R. v. Sadikov, 2014 ONCA 72; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; and R. v. Garofoli, [1990] 2 S.C.R. 1421.
38It is compelling to say there must be a line somewhere, the existence of which would force law enforcement to act promptly. It is reasonable to suggest there should be a point at which information becomes too dated. And it is fair to say that, because of the passage of time, this case requires careful scrutiny of the ITO, chronology, any explanations for delay, and of what was done during that period, all to ensure there is currency and present value in the information. To not do so would be to allow a suspicion based test to replace a credibility based probability. See R. v. Debot, [1989] 2 S.C.R. 1140.
39The applicant draws a parallel between the matter at hand and the issues confronting the court in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. Morelli highlights some fundamental principles which must guide me. It stresses, the fairly obvious point, that a search of one’s personal computer is intrusive, invasive and that caution must be used to ensure officers not resort to stereotyping or inflammatory accusations in the application process; surely a temptation given the nature of child pornography. I have undertaken the proper self-direction in this respect. The seriousness of the offence does not diminish constitutional safeguards.
40Morelli speaks to the issues I have already discussed, and which are apparent in Mr. Lipscombe’s preliminary hearing evidence. It details the ‘caching function’, and describes how a computer stores temporary files. We learn from the evidence in Morelli that cached files are discarded automatically after a period of time, or after the cache grows to a certain size.
41Returning to the evidence of Chris Lipscombe, I must add that this does give me pause. Largely because, I can’t help but wonder if, had the affiant known his evidence at the time of her application, would she have been able to depose in the manner she did, and form the beliefs she had? I doubt it; which still leaves me to ponder the validity of the warrant in light of the information the affiant did know, and the totality of the information that was provided to the issuing justice.
42The applicant would likely argue that, if known, this would have impacted the affiant’s belief in one of two ways. Either she did not have a subjective belief and thereby misled the justice; or the subjective belief she did hold was not reasonable.
43This, of course, is not the sole factor, as I must view all of the information, and consider the entire context, which requires that I, should I uphold the efficacy of the warrant, point out that which distinguishes this case from Morelli. I will return to this and do just that at various points throughout the balance of these reasons.
44The applicant further argues the warrant should not have issued, in part, because the ITO did not include the fact police had not confirmed the existence of a computer in the residence three years after the alleged offence. Paragraph 45 of his factum reads:
It defies logic that the police could state with confidence that evidence of illegal computer access will be found if it is not even known whether there is a computer in the residence. No information was disclosed about the slim likelihood of finding evidence of access years later. The police were relying on stereotypes to conclude the applicant probably saved files without any evidence to suggest this was true.
45He essentially argues that the affiant misled the justice by omitting relevant information and by including generalized opinions about a loosely defined class of people. He points to the courts comments in Morelli, particularly those found at para. 63, where it speaks of how certain inferential paths inevitably lead to suspicion and conjecture.
46The Crown counters by distinguishing Morelli from what it calls the proper evidentiary basis laid by the affiant in the ITO, and by relying on the Ontario Court of Appeal’s decisions in each of R. v. Ward, 2012 ONCA 660 and R. v. Burke, 2013 ONCA 424. The Crown highlights the fact that in Morelli the court concluded that the affiant’s comments within the impugned ITO were “entirely devoid of meaningful factual support”, and that there was nothing in the ITO to establish the qualifications of the officer as someone who could speak to those who could be described as “child pornography offenders”.
47Paragraph 23 of the Crown’s factum reads:
…..the Ontario Court of Appeal has already twice confirmed that Morelli is not an absolute bar to all comments from qualified officers about classes of child pornography offenders. In particular, in Ward, it expressly held that an affiant’s detailed evidence based on his first-hand experiences about the practices of people who access and download child pornography could be relied upon in an ITO as part of the grounds to believe that a search would still provide evidence of a child pornography offence. A qualified officer’s opinion evidence can form part of the basis upon which a justice could reasonably infer that there is a reasonable probability that evidence of accessing or downloading child pornography would remain on a computer even after an extended period.
48Did the affiant engage in speculation, or did she provide a foundation which would enable her to depose about child pornography offenders?
49The applicant argues it was far too speculative to suggest that whoever accessed child pornography in 2010 was not a casual user but someone with a committed interest in child pornography. We know from Morelli that generalizations about all child pornography offenders, is indeed prohibited. The Crown argues that, unlike in Morelli, there is a factual foundation to conclude the alleged accessor belongs to the class of offenders described in the ITO. In our case, the affiant draws the conclusion that whoever accessed child pornography in 2010 was not merely a casual, impulsive user. I note that whoever did this, accessed 1251 images in only two and a half hours; what the Crown calls a frenzied rate. The affiant further deposes that one would have to “click individually on each image in order to open the image to view its content”. She provides further information to support the inference that one would not have accidentally come upon the images, and that they would had to have been specifically sought out.
50I find that no deficiency lies here, which represents a departure from the court’s conclusion in Morelli as to classes of offenders. In other words, the court in Morelli found this aspect of the ITO to be either misleading, or incomplete. In this matter I make no such finding. There is a proper evidentiary foundation. The affiant details her experience in child exploitation and pornography cases, as well as her training and background, which I believe entitles her to offer her belief and opinion on such matters.
51The applicant also contends that the passage of time detracts from the sufficiency of grounds. In this respect, I am not so much concerned with the preliminary hearing evidence of Mr. Lipscombe, but more with the affiant’s statement that she beforehand consulted with computer forensic analyst Detective Constable Eddy, thereafter including his comments in the ITO. I earlier describe his advice.
52In this respect, the distinctions between the case at hand and Morelli, are plentiful. Addressing both the issue of whether the affiant misled the court, and of timing, I point out that, in Morelli, the court found that the ITO was both misleading and deficient. It provided little evidence as to whether images could be stored or found on a device. The ITO cited the evidence of a single witness who saw two suspicious bookmarks on the accused’s computer, which is remarkably different than the information available to the affiant in this instance. Here we have an IP address; connected to a residence; a residence the accused lived in; and some evidence that the accused lived at that very address during the time child pornography was accessed in 2010.
53Narrowing the issue to that of timing, there is no doubt, as I will address again shortly, that the greater the lapse of time, the more likely it will be impossible to recover images that were previously accessed. However, the answer to this is, when it becomes an issue, to engage in greater scrutiny of the ITO. This would typically require that the ITO directly address how the affiant counters the possibility that evidence may have been deleted. In Morelli, the court specifically found that, on this issue, this was not done and that the police engaged in conjecture and speculation. I don’t believe the same can be said of the affiant in this case.
54One other interesting aspect of Morelli, which was not an argument advanced by the Crown, is found in para. 6. It reads:
The ITO alleged that the appellant was then in possession of child pornography and that there were reasonable and probable grounds to believe that “the said material, or some part of them are obtained inside the computer”. I emphasize from the outset that the ITO did not allege the distinct and separate offence of accessing child pornography, either when the ITO was sworn or four months earlier, before the computer was formatted.
55The court’s emphasis here suggests that a different approach might be in order when the ITO cites accessing, as opposed to possession. If so, given the information provided by the UK authorities, the early focus on accessing, and the ultimate conclusion that there was in fact accessing, is not the complexion of this case far different from Morelli? Does this perhaps suggest a different threshold? I am not certain, but what this does do is differentiate our fact-set from Morelli.
56On the record before me, I cannot conclude the affiant’s belief as to the nature of internet history, its location, and probability of being located upon analysis, is without merit. A factual foundation is woven throughout the ITO, which would tend to support her stated belief.
57The bottom line is this. To accept the applicant’s argument would require that I make these five conclusions. First, that there is a ‘bright line’, fixed amount of time, passing which a warrant should not issue. Second, that Canadian law enforcement did nothing in the intervening period to confirm the information it had received. Third, that the LPS was required to verifiably confirm the physical existence of a computer within 416 Riverside Drive. Fourth, that there was no basis for the issuing justice to accept the affiant’s evidence which drew a link between the facts, as they were known in March 2013, and someone who either purposely saved at least some of the accessed images, or that such a person (who fits in this class of offender) would not actively seek to delete them. And fifth, that the affiant misled the justice by omitting relevant facts.
58I draw no such conclusions; which is not to suggest the warrant application process unfolded perfectly. While I accept the affiant, and the LPS child exploitation unit generally, were, during the relevant time, busy and that they needed to prioritize investigations; and while I accept that cases involving the active exploitation or abuse of children within the community would take precedence over a matter such as this, to wait the time they did to apply for and obtain the warrant, was ill advised. This was an arguable case, in my view, simply because of the time lapse. The longer it went on, and the less proximate it became, the stronger likelihood this application would have succeeded. While there is no bright line or fixed date, there is a point at which the information can no longer be relied upon. This is a question to be answered on a case by case basis, confined to its particular facts.
59Despite my concerns, and irrespective of what I might have done, I cannot conclude there was no credible and reliable evidence to permit the justice to find reasonable and probable grounds existed to believe that an offence had been committed, and that evidence of that offence would be found at the specified time and place.
60The affiant did not attempt to mislead the issuing justice.
61R. v. Vu, 2013 SCC 60, [2013] S.C.J. No. 60 (see also R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787) seems to support the position that confirmation of the physical existence of a computer inside the place, is not required. Given the context, the facts as they were then known by the affiant, the general and society wide acceptance that most people have a computer or electronic device, if not multiple devices, with internet connectivity, and the relative cost and value of computers, it was reasonable to conclude, with a measure of probability if not certainty, that a computer was in the Riverside Drive residence.
62As a further comparison, I would be remiss to not mention R. v. Goodfellow, 2014 ONCJ 567, a 2014 decision of the Ontario Court of Justice. In that case, the judge found a s. 8 violation and excluded the evidence where there was a 13 month gap between the alleged downloading, and the date that information was provided to the police.
63I bring this up to point out the distinctions. First, in the applicant’s instance, we have a specific IP address that is linked to a specific residential address; that is linked to a specific individual. In Goodfellow, the information was that “a file containing child pornography was downloaded onto a computer at or near 798 Syer Drive, Milton, on May 20, 2011”. The judge goes on to highlight the importance of the time lapse, but it is clear this is but one of many factors considered. There was no consultation similar to that which the affiant undertook with Constable Eddy. There was no specific IP address. There was no definite residential address. There was no confirmation as to the exact location of the supposed downloading. There was no evidence someone was accessing child pornography in a clearly deliberate manner.
64In the result, I dismiss the applicant’s claim that his s. 8 Charter rights were violated.
Section 7 – Pre-Charge Delay and Impact on Ability to Make Full Answer and Defence
65Addressing now the applicant’s s. 7 motion.
66Section 7 of the Charter provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
67The applicant claims a violation in that the Crown has failed to make proper disclosure, thereby impairing his ability to make full answer and defence. This breach, he says, emanates from the pre-charge delay.
68He concedes that routine practices, such as charge-approval processes, are acceptable so long as the Crown or police do not act in an “unnecessary or unwarranted” manner. He submits that the delay in investigating this matter and in ultimately charging him, was unreasonable, causing prejudice in the form of psychological trauma.
69In the event I find a violation, he seeks a stay of proceeding pursuant to s. 24(1) of the Charter.
70The relevant evidence on this issue is the testimony of the affiant, in particular her explanation for the delay from December, 2011 (when the LPS received the file from external authorities) and March, 2013 (when the warrant was applied for, obtained and executed).
71She testified she was not involved in the investigation upon receipt of the referral in December 2011. She spoke about the Internet Crime Unit and its processes generally. In terms of who was assigned what; the speed of response in a particular investigation; prioritization, and so on, is, and was in 2011 through 2013, based on “risk to children”. If a child is directly at risk, that case will be immediately addressed. If a complaint or investigation is, what she describes as “from the street”, priority is given. If a complaint involves someone who has a history of sex offending, priority is given. On this spectrum, other cases had a higher priority.
72When asked about the specific number of active files from May 2012 until March 2013, she testified there are generally anywhere from 30 to 40 investigations per year. During that particular time period she personally arrested 15 people, which doesn’t represent the total number of investigations she was involved with.
73She testified that, at one point, she was about to commence this investigation in earnest, only to be assigned a case involving a “hands on” child situation. She spoke at length about the current backlog of cases in her department, adding she currently needs to write five search warrants, and that she has not completed them because other cases continue to come in with a higher priority.
74On this issue the applicant relies on the Supreme Court of Canada decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326, in which the court sets out the Crown’s disclosure obligations, describing it as one of the components of the right to make full answer and defence.
75As to remedy, the applicant contends that a s. 24(1) analysis favours a judicial stay of proceedings. He argues this would be the only way to meaningfully address the breach, as his ability to make full answer and defence has been forever impaired. The “lost” evidence will never be found.
76I must first determine whether there was a violation, as prejudice is not to be considered until the remedy stage.
77I am not certain whether this part of the application rests in a belief there has been an abuse of process, or whether the ‘lost evidence’ singularly impacts the ability to make full answer and defence; or both. It is equally unclear how a disclosure argument fits into the equation.
78I am unable to determine what has not been disclosed, or what evidence has been lost. This is not itemized in the application materials, and is not otherwise apparent. I find that all relevant, first party information has been provided to the applicant.
79Is it possible the applicant is referencing materials or information, currently in the possession of UK authorities? Is it possible he is characterizing the accessed images from 2010 as lost evidence? Perhaps, although I am not entirely sure.
80Respecting the latter, this cannot be properly described as evidence. It was never in the possession of the police and or Crown. While some of the images were viewed by Canadian law enforcement officials, who in turn drew a conclusion that it met the definition of child pornography, this was information relied upon to obtain the warrant. In almost any case, they who are seeking a warrant, are relying on a number of things to support it, including information received from others, or observations, all of which is reviewable within an ITO, subject to some allowable redactions. The information relied upon within this ITO is clear, not to mention the fact the actual report from UK law enforcement officials (titled Operation Oliver), has been disclosed.
81On the question of abuse of process, the record before me would not support such a finding. As for the affiant’s reasons for the delay in obtaining the warrant, her evidence was largely unchallenged. There was no suggestion she acted in bad faith. While an abuse may, in certain circumstances, lie in neglect as opposed to a purposeful attempt to prejudice an accused, in this case there is no basis to draw that conclusion. She provided easily understandable, cogent evidence, from which she did not resile, indicating her workload was such that higher priority cases involving children at risk, took precedence.
82Should I be mistaken, and if there was a violation, on the issue of prejudice, the concern I have is that during the relevant time, the applicant had no idea the LPS had in fact received information from the UK. Not only was he unaware, there is no evidence to suggest this became publicly known, until he was charged. I cannot find he was personally dealing with the stress of this ‘hanging over his head’. His public reputation was not, during that time period, being tarnished. Beyond a small group of law enforcement officials, no one knew.
83This would not have been one of the clearest of cases, warranting a stay.
84The applicant references the courts comments in both R. v. O’Connor, [1995] 4 SCR 411 and R. v. Ferris, 2013 BCCA 30. Both are distinguishable. O’Connor contemplates the production of third party records. It is not known what records or disclosures the applicant is seeking.
85Respecting the applicability of Ferris, I am unable to conclude there was a delay in charging. In fact the opposite is true. Upon the police believing they had reasonable grounds, charges were promptly laid. Furthermore, I agree with the Crown that, even if Ferris applies, there is no evidence that would support a finding the LPS acted uniquely, unfairly, or maliciously.
86I dismiss the applicant’s motion alleging a s. 7 violation.
“Justice Jonathon C. George” Justice J. C. George Released: September 7, 2016
